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| <pre> | | <pre> |
| March 1991 | | March 1991 |
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| EMERGENCY SEARCHES OF EFFECTS | | EMERGENCY SEARCHES OF EFFECTS |
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| By | | By |
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| John Gales Sauls | | John Gales Sauls |
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| Special Agent and Legal Instructor | | Special Agent and Legal Instructor |
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| FBI Academy | | FBI Academy |
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| Quantico, Virginia | | Quantico, Virginia |
| + | </pre> |
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| + | A police department receives an anonymous tip that a bomb |
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− | A police department receives an anonymous tip that a bomb
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| is concealed in a package addressed to a foreign embassy located | | is concealed in a package addressed to a foreign embassy located |
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| in its jurisdiction. The package has been sent via a package | | in its jurisdiction. The package has been sent via a package |
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| delivery service. The police contact the delivery service, | | delivery service. The police contact the delivery service, |
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| which has five packages addressed to the embassy. The police | | which has five packages addressed to the embassy. The police |
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| converge on the delivery service, immediately subject each | | converge on the delivery service, immediately subject each |
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| package to X-ray examination, and seize one package that appears | | package to X-ray examination, and seize one package that appears |
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| to contain explosives. This package is then taken to a safe | | to contain explosives. This package is then taken to a safe |
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| disposal area, where it is opened, and the explosive device is | | disposal area, where it is opened, and the explosive device is |
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| disarmed. No warrant is obtained for the X-ray examination, the | | disarmed. No warrant is obtained for the X-ray examination, the |
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| seizure, or the search performed when the package is opened. | | seizure, or the search performed when the package is opened. |
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− | | + | Other officers of the department receive a tip that a |
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− | Other officers of the department receive a tip that a
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| package arriving by bus contains a large quantity of cocaine. | | package arriving by bus contains a large quantity of cocaine. |
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| The tipster provides a description of the package, including the | | The tipster provides a description of the package, including the |
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| name of the addressee. Officers locate the package at the bus | | name of the addressee. Officers locate the package at the bus |
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| station and detain it for several minutes until a trained drug | | station and detain it for several minutes until a trained drug |
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| detection dog is able to sniff it. (1) The dog alerts, and the | | detection dog is able to sniff it. (1) The dog alerts, and the |
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| police maintain a surveillance until a man comes to claim the | | police maintain a surveillance until a man comes to claim the |
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| package. The man is held while the police open the package, | | package. The man is held while the police open the package, |
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| discovering the cocaine. The man is then arrested. No warrant | | discovering the cocaine. The man is then arrested. No warrant |
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| was obtained for the search of the package or the man's arrest. | | was obtained for the search of the package or the man's arrest. |
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− | | + | In each of these situations, officers have made on-the-spot |
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− | In each of these situations, officers have made on-the-spot
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| decisions to conduct searches and seizures without warrants. In | | decisions to conduct searches and seizures without warrants. In |
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| the prosecutions that follow, the defendants will likely | | the prosecutions that follow, the defendants will likely |
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| challenge the admissibility of the seized evidence, claiming it | | challenge the admissibility of the seized evidence, claiming it |
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| was obtained in violation of their constitutional rights. | | was obtained in violation of their constitutional rights. |
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| Because the searches and seizures were performed without | | Because the searches and seizures were performed without |
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| warrants, the burden of establishing their legality will rest | | warrants, the burden of establishing their legality will rest |
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| upon the government. (2) | | upon the government. (2) |
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− | | + | What emergency circumstances justify an officer searching |
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− | What emergency circumstances justify an officer searching
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| or seizing, without a warrant, items of personal property | | or seizing, without a warrant, items of personal property |
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| effects? (3) This article seeks to answer that crucial question | | effects? (3) This article seeks to answer that crucial question |
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| through an exploration of the "emergency" or "exigent | | through an exploration of the "emergency" or "exigent |
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| circumstances" exception to the fourth amendment warrant | | circumstances" exception to the fourth amendment warrant |
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| requirement. (4) | | requirement. (4) |
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− | | + | Courts commonly recognize three threats as providing |
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− | Courts commonly recognize three threats as providing
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| justification for emergency warrantless action--danger to life, | | justification for emergency warrantless action--danger to life, |
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| danger of escape, and danger of destruction or removal of | | danger of escape, and danger of destruction or removal of |
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| evidence. The presence of any one of these threats may provide | | evidence. The presence of any one of these threats may provide |
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| justification for a warrantless search or seizure of personal | | justification for a warrantless search or seizure of personal |
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| property. There are different legal standards for emergency | | property. There are different legal standards for emergency |
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| action based upon danger to life and that involving the danger | | action based upon danger to life and that involving the danger |
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| of escape or destruction of evidence. Awareness of the type of | | of escape or destruction of evidence. Awareness of the type of |
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| emergency present in a particular situation is the key to | | emergency present in a particular situation is the key to |
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| correct on-the-spot decisions. | | correct on-the-spot decisions. |
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− | | + | This article will first examine U.S. Supreme Court and |
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− | This article will first examine U.S. Supreme Court and
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| lower court decisions considering the legality of warrantless | | lower court decisions considering the legality of warrantless |
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| searches of effects based upon suspected threats to life. It | | searches of effects based upon suspected threats to life. It |
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| will focus on the legal standard for such emergency searches and | | will focus on the legal standard for such emergency searches and |
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| the circumstances courts commonly deem sufficient for | | the circumstances courts commonly deem sufficient for |
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| establishing a threat to life and the allowable scope of action | | establishing a threat to life and the allowable scope of action |
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| for dealing with that threat. The article will then examine | | for dealing with that threat. The article will then examine |
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| cases involving warrantless searches of effects based upon | | cases involving warrantless searches of effects based upon |
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| emergency threats of destruction or removal of evidence. | | emergency threats of destruction or removal of evidence. |
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| THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DEFINED | | THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DEFINED |
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− | | + | The fourth amendment protects persons in the United States |
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− | The fourth amendment protects persons in the United States
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| from "unreasonable" searches or seizures of their effects. (5) | | from "unreasonable" searches or seizures of their effects. (5) |
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| The U.S. Supreme Court, in determining what government | | The U.S. Supreme Court, in determining what government |
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| intrusions are reasonable under the fourth amendment, has | | intrusions are reasonable under the fourth amendment, has |
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| expressed an emphatic preference for searches and seizures made | | expressed an emphatic preference for searches and seizures made |
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| pursuant to judicially issued warrants. (6) As the Court has | | pursuant to judicially issued warrants. (6) As the Court has |
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| stated, the "Constitution requires that the deliberate, | | stated, the "Constitution requires that the deliberate, |
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| impartial judgment of a judicial officer be interposed between | | impartial judgment of a judicial officer be interposed between |
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| the citizen and the police... [and] searches conducted outside | | the citizen and the police... [and] searches conducted outside |
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| the judicial process, without prior approval by a judge or | | the judicial process, without prior approval by a judge or |
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| magistrate, are per se unreasonable under the Fourth Amendment | | magistrate, are per se unreasonable under the Fourth Amendment |
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| subject to a few specifically established and well-delineated | | subject to a few specifically established and well-delineated |
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| exceptions." (7) | | exceptions." (7) |
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− | | + | In most situations then, a "reasonable" search or seizure |
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− | In most situations then, a "reasonable" search or seizure
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| is one performed with a valid warrant. Consequently, for fourth | | is one performed with a valid warrant. Consequently, for fourth |
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| amendment purposes, "reasonable" is a legal term with a | | amendment purposes, "reasonable" is a legal term with a |
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| meaning different from that attached to the word as it is | | meaning different from that attached to the word as it is |
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| commonly used. There are exceptions to the warrant | | commonly used. There are exceptions to the warrant |
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| requirement--"reasonable" warrantless searches and seizures-- | | requirement--"reasonable" warrantless searches and seizures-- |
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| but these exceptions are created not by what a police officer | | but these exceptions are created not by what a police officer |
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| might believe to be reasonable but by a court's assessment of | | might believe to be reasonable but by a court's assessment of |
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| necessity. The "exceptions are `jealously and carefully | | necessity. The "exceptions are `jealously and carefully |
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| drawn,' and there must be `a showing by those who seek exemption | | drawn,' and there must be `a showing by those who seek exemption |
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| [from the warrant requirement]...that the exigencies of the | | [from the warrant requirement]...that the exigencies of the |
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| situation made that course imperative' "(citations omitted). | | situation made that course imperative' "(citations omitted). |
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| (8) The Court has recognized the need to provide for emergency | | (8) The Court has recognized the need to provide for emergency |
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| situations "...where the societal costs of obtaining a warrant, | | situations "...where the societal costs of obtaining a warrant, |
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| such as danger to law officers or the risk of loss or | | such as danger to law officers or the risk of loss or |
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| destruction of evidence, outweigh the reasons for prior recourse | | destruction of evidence, outweigh the reasons for prior recourse |
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| to a neutral magistrate," (9) but the government bears the | | to a neutral magistrate," (9) but the government bears the |
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| burden of showing the warrantless action was necessary. (10) | | burden of showing the warrantless action was necessary. (10) |
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| DANGER TO LIFE EMERGENCY | | DANGER TO LIFE EMERGENCY |
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− | | + | Because of the high value our society places on life, a |
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− | Because of the high value our society places on life, a
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| circumstance that has a profound impact on the reasonableness of | | circumstance that has a profound impact on the reasonableness of |
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| a warrantless search or seizure is whether such action is taken | | a warrantless search or seizure is whether such action is taken |
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| to neutralize a suspected threat to human life. The U.S. | | to neutralize a suspected threat to human life. The U.S. |
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| Supreme Court has stated that "[t]he Fourth Amendment does not | | Supreme Court has stated that "[t]he Fourth Amendment does not |
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| require police officers to delay in the course of an | | require police officers to delay in the course of an |
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| investigation if to do so would gravely endanger their lives or | | investigation if to do so would gravely endanger their lives or |
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| the lives of others." (11) In fact, the Court has approved a | | the lives of others." (11) In fact, the Court has approved a |
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| lower standard of proof--reasonable suspicion--for justifying | | lower standard of proof--reasonable suspicion--for justifying |
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| warrantless searches based upon a perceived danger to life, so | | warrantless searches based upon a perceived danger to life, so |
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| long as the action taken is no greater than necessary to | | long as the action taken is no greater than necessary to |
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| eliminate the danger. (12) Therefore, where a warrantless search | | eliminate the danger. (12) Therefore, where a warrantless search |
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| or seizure is made in response to a perceived threat to life, | | or seizure is made in response to a perceived threat to life, |
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| the government must be prepared to show that at the time of the | | the government must be prepared to show that at the time of the |
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| action: 1) Facts were known that would cause a reasonable | | action: 1) Facts were known that would cause a reasonable |
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| person to suspect that prompt action was necessary to protect | | person to suspect that prompt action was necessary to protect |
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| human life; and 2) that the action taken was no more intrusive | | human life; and 2) that the action taken was no more intrusive |
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| than necessary to eliminate the suspected threat. | | than necessary to eliminate the suspected threat. |
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| Suspected Presence of Dangerous Instrumentalities | | Suspected Presence of Dangerous Instrumentalities |
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− | | + | In Michigan v. Long, (13) two officers patrolling a country |
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− | In Michigan v. Long, (13) two officers patrolling a country
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| road late at night saw a car being driven erratically and at | | road late at night saw a car being driven erratically and at |
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| excessive speed. Before they could stop the car, it turned onto | | excessive speed. Before they could stop the car, it turned onto |
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| a side road and swerved into a ditch. (14) Mr. Long, the sole | | a side road and swerved into a ditch. (14) Mr. Long, the sole |
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| occupant of the car, met the officers at its rear. The driver's | | occupant of the car, met the officers at its rear. The driver's |
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| door was left open. After two requests, Long produced his | | door was left open. After two requests, Long produced his |
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| driver's license, and after a second request for the vehicle's | | driver's license, and after a second request for the vehicle's |
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| registration, he started walking toward the open driver's door. | | registration, he started walking toward the open driver's door. |
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| The officers followed, and before Long could enter the car, they | | The officers followed, and before Long could enter the car, they |
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| saw a large hunting knife on the car's floorboard. Now | | saw a large hunting knife on the car's floorboard. Now |
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| suspecting that Long might have weapons on his person, the | | suspecting that Long might have weapons on his person, the |
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| officers stopped him and performed a patdown search. (15) This | | officers stopped him and performed a patdown search. (15) This |
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| search revealed no weapons. Suspecting that there might be | | search revealed no weapons. Suspecting that there might be |
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| other weapons in the car, one officer shined his flashlight into | | other weapons in the car, one officer shined his flashlight into |
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| the interior, saw a pouch protruding from beneath the center | | the interior, saw a pouch protruding from beneath the center |
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| armrest, and entered the car and raised the armrest to examine | | armrest, and entered the car and raised the armrest to examine |
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| it. The pouch was open and contained marijuana. This discovery | | it. The pouch was open and contained marijuana. This discovery |
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| prompted Long's arrest. | | prompted Long's arrest. |
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− | | + | In assessing the reasonableness of this warrantless entry |
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− | In assessing the reasonableness of this warrantless entry
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| and limited search of Long's car, the Supreme Court approved the | | and limited search of Long's car, the Supreme Court approved the |
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| officers' actions, noting both the factual justification for | | officers' actions, noting both the factual justification for |
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| suspecting the presence of weapons and the circumscribed nature | | suspecting the presence of weapons and the circumscribed nature |
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| of their search. (16) The Court held that where officers | | of their search. (16) The Court held that where officers |
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| reasonably suspect the presence of readily accessible deadly | | reasonably suspect the presence of readily accessible deadly |
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| weapons in a lawfully stopped vehicle, they may make a limited | | weapons in a lawfully stopped vehicle, they may make a limited |
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| search of the vehicle's interior for the purpose of locating and | | search of the vehicle's interior for the purpose of locating and |
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| controlling the weapons. (17) In performing such a search, | | controlling the weapons. (17) In performing such a search, |
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| officers must restrict their examination to those places where | | officers must restrict their examination to those places where |
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| readily accessible weapons might be concealed. (18) | | readily accessible weapons might be concealed. (18) |
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− | | + | The officers in Long were able to protect themselves and |
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− | The officers in Long were able to protect themselves and
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| the public with a cursory search of the car's interior. | | the public with a cursory search of the car's interior. |
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| Different facts will support a search with a broader scope. For | | Different facts will support a search with a broader scope. For |
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| example, in Cady v. Dombrowski, (19) the Supreme Court assessed | | example, in Cady v. Dombrowski, (19) the Supreme Court assessed |
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| the legality of a search of the trunk of an arrestee's car that | | the legality of a search of the trunk of an arrestee's car that |
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| had been impounded and stored at an unsecured private lot. The | | had been impounded and stored at an unsecured private lot. The |
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| car's owner was arrested for murder, and after the car had been | | car's owner was arrested for murder, and after the car had been |
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| towed from the arrest scene, the police learned facts causing | | towed from the arrest scene, the police learned facts causing |
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| them to suspect that a handgun might be in the car. Officers | | them to suspect that a handgun might be in the car. Officers |
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| went to the private lot where the car was located and found a | | went to the private lot where the car was located and found a |
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| revolver (which was later determined to be the murder weapon) in | | revolver (which was later determined to be the murder weapon) in |
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| the car's trunk. In approving the reasonableness of this | | the car's trunk. In approving the reasonableness of this |
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| warrantless search, the Court cited its "...concern for the | | warrantless search, the Court cited its "...concern for the |
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| safety of the general public who might be endangered if an | | safety of the general public who might be endangered if an |
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| intruder removed a revolver from the trunk of the [unsecured, | | intruder removed a revolver from the trunk of the [unsecured, |
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| unattended] vehicle." (20) | | unattended] vehicle." (20) |
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− | | + | The interior of a suitcase, (21) briefcase, (22) handbag, |
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− | The interior of a suitcase, (21) briefcase, (22) handbag,
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| (23) or package suspected to contain a dangerous instrumentality | | (23) or package suspected to contain a dangerous instrumentality |
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| may also be searched without a warrant where necessary to | | may also be searched without a warrant where necessary to |
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| protect persons. For example, in United States v. Sarkissian, | | protect persons. For example, in United States v. Sarkissian, |
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| (24) officers had reason to believe that explosives were | | (24) officers had reason to believe that explosives were |
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| concealed in luggage arriving on a commercial airline flight. | | concealed in luggage arriving on a commercial airline flight. |
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| Suitcases unloaded from the plane were sniffed by a dog trained | | Suitcases unloaded from the plane were sniffed by a dog trained |
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| in detecting explosives and examined by X-ray. A suitcase, | | in detecting explosives and examined by X-ray. A suitcase, |
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| appearing on X-ray to contain explosives, was opened and | | appearing on X-ray to contain explosives, was opened and |
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| searched. These warrantless actions were held reasonable based | | searched. These warrantless actions were held reasonable based |
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| upon the peril posed by unsecured explosives. | | upon the peril posed by unsecured explosives. |
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− | | + | In United States v. Miller, (25) a limited search of the |
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− | In United States v. Miller, (25) a limited search of the
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| interior of a purse was approved as a reasonable protective | | interior of a purse was approved as a reasonable protective |
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| measure. On a day Miller's husband was to be arraigned for a | | measure. On a day Miller's husband was to be arraigned for a |
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| felony, she entered the courtroom with a coat draped over her | | felony, she entered the courtroom with a coat draped over her |
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| arm concealing a large handbag. She sat near the rear of the | | arm concealing a large handbag. She sat near the rear of the |
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| courtroom along the center aisle, where her husband, who was in | | courtroom along the center aisle, where her husband, who was in |
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| custody, would soon be walking. She rested her hand upon her | | custody, would soon be walking. She rested her hand upon her |
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| partly opened bag. A marshall, aware of these facts and having | | partly opened bag. A marshall, aware of these facts and having |
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| been informed that a report had been received that Miller's | | been informed that a report had been received that Miller's |
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| husband might attempt an escape, opened Miller's bag further, | | husband might attempt an escape, opened Miller's bag further, |
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| locating a firearm. In holding the marshall's actions | | locating a firearm. In holding the marshall's actions |
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| reasonable under the fourth amendment, the court noted that, | | reasonable under the fourth amendment, the court noted that, |
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| coupled with the report that an escape might occur, | | coupled with the report that an escape might occur, |
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| "...Miller's concealment of her handbag upon entry, the | | "...Miller's concealment of her handbag upon entry, the |
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| strategic seat she selected, and the convenient placement of her | | strategic seat she selected, and the convenient placement of her |
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| open bag made reasonable the belief that she might be armed." (26) | | open bag made reasonable the belief that she might be armed." (26) |
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| Suspected Presence of Information Crucial to Preserving Life | | Suspected Presence of Information Crucial to Preserving Life |
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− | | + | Officers occasionally are confronted with facts that cause |
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− | Officers occasionally are confronted with facts that cause
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| them to reasonably suspect that information necessary to | | them to reasonably suspect that information necessary to |
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| preserve the life of a person is contained in an effect. For | | preserve the life of a person is contained in an effect. For |
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| example, in United States v. Dunavan, (27) officers responded to | | example, in United States v. Dunavan, (27) officers responded to |
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| a report of a disabled car that had set the grass beneath it on | | a report of a disabled car that had set the grass beneath it on |
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| fire. In the driver's seat, they found Dunavan, who was | | fire. In the driver's seat, they found Dunavan, who was |
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| "foaming at the mouth and unable to talk." (28) Dunavan was | | "foaming at the mouth and unable to talk." (28) Dunavan was |
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| rushed to the hospital, and the officers then sought to | | rushed to the hospital, and the officers then sought to |
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| determine the cause of his malady in the hope of providing | | determine the cause of his malady in the hope of providing |
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| information that would aid in his treatment. In the course of | | information that would aid in his treatment. In the course of |
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| this effort, they opened two briefcases belonging to Dunavan, | | this effort, they opened two briefcases belonging to Dunavan, |
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| revealing evidence of crime. This action was held to be a | | revealing evidence of crime. This action was held to be a |
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| reasonably limited search responsive to the emergency at hand. | | reasonably limited search responsive to the emergency at hand. |
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| DANGER OF DESTRUCTION OR REMOVAL OF EVIDENCE EMERGENCY | | DANGER OF DESTRUCTION OR REMOVAL OF EVIDENCE EMERGENCY |
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− | | + | In addition to danger to life, the U.S. Supreme Court has |
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− | In addition to danger to life, the U.S. Supreme Court has
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| also recognized the danger of destruction or removal of evidence | | also recognized the danger of destruction or removal of evidence |
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| as embodying exigent circumstances sufficient to justify | | as embodying exigent circumstances sufficient to justify |
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| warrantless action. (29) In regard to effects, the action | | warrantless action. (29) In regard to effects, the action |
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| permissible to prevent the destruction or removal of evidence is | | permissible to prevent the destruction or removal of evidence is |
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| substantially less than that allowed to protect life. | | substantially less than that allowed to protect life. |
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| Generally, only a warrantless seizure of an effect will be | | Generally, only a warrantless seizure of an effect will be |
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| allowed to preserve evidence, not a warrantless search of the | | allowed to preserve evidence, not a warrantless search of the |
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| effect's contents. | | effect's contents. |
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− | | + | The factual justification required to support a warrantless |
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− | The factual justification required to support a warrantless
| |
− | | |
| seizure of an effect to prevent the destruction or removal of | | seizure of an effect to prevent the destruction or removal of |
− |
| |
| evidence depends on the extent of control exercised by the | | evidence depends on the extent of control exercised by the |
− |
| |
| government over the item. The Supreme Court has recognized two | | government over the item. The Supreme Court has recognized two |
− |
| |
| distinct types of seizures of effects: 1) Temporary detention, | | distinct types of seizures of effects: 1) Temporary detention, |
− |
| |
| which requires a showing of reasonable suspicion to believe the | | which requires a showing of reasonable suspicion to believe the |
− |
| |
| item contains evidence or contraband; and 2) a more absolute | | item contains evidence or contraband; and 2) a more absolute |
− |
| |
| seizure, which must be justified through a showing of probable | | seizure, which must be justified through a showing of probable |
− |
| |
| cause to search the interior of the item for evidence or | | cause to search the interior of the item for evidence or |
− |
| |
| contraband. | | contraband. |
− |
| |
| | | |
| | | |
| Temporary Detention of Effects | | Temporary Detention of Effects |
| | | |
− | | + | In United States v. Place, (30) the Supreme Court approved |
− | | |
− | In United States v. Place, (30) the Supreme Court approved
| |
− | | |
| temporary detention by the police of luggage reasonably | | temporary detention by the police of luggage reasonably |
− |
| |
| suspected (31) to contain illegal drugs. Place was an airline | | suspected (31) to contain illegal drugs. Place was an airline |
− |
| |
| traveler who aroused the suspicion of police based upon his | | traveler who aroused the suspicion of police based upon his |
− |
| |
| appearance, travel itinerary, and conduct. Officers took | | appearance, travel itinerary, and conduct. Officers took |
− |
| |
| Place's two suitcases from him, stating that they would seek a | | Place's two suitcases from him, stating that they would seek a |
− |
| |
| search warrant for the bags. They then transported the | | search warrant for the bags. They then transported the |
− |
| |
| suitcases from New York's La Guardia Airport to Kennedy Airport, | | suitcases from New York's La Guardia Airport to Kennedy Airport, |
− |
| |
| where they were sniffed by a trained drug detection dog 90 | | where they were sniffed by a trained drug detection dog 90 |
− |
| |
| minutes after the seizure. Although the Court approved the | | minutes after the seizure. Although the Court approved the |
− |
| |
| initial seizure of Place's suitcases, it held the seizure | | initial seizure of Place's suitcases, it held the seizure |
− |
| |
| ultimately involved too great an interference in Place's | | ultimately involved too great an interference in Place's |
− |
| |
| possessory interest in his property to be reasonable. Citing | | possessory interest in his property to be reasonable. Citing |
− |
| |
| the length of time of the seizure as unnecessarily long, the | | the length of time of the seizure as unnecessarily long, the |
− |
| |
| Court also noted "...the failure of the agents to accurately | | Court also noted "...the failure of the agents to accurately |
− |
| |
| inform [Place] of the place to which they were transporting his | | inform [Place] of the place to which they were transporting his |
− |
| |
| luggage, of the length of time he might be dispossessed, and of | | luggage, of the length of time he might be dispossessed, and of |
− |
| |
| what arrangements would be made for the return of the luggage if | | what arrangements would be made for the return of the luggage if |
− |
| |
| the investigation dispelled the suspicion." (32) This holding | | the investigation dispelled the suspicion." (32) This holding |
− |
| |
| is premised, in part, on the fact that luggage frequently | | is premised, in part, on the fact that luggage frequently |
− |
| |
| contains necessities to which travelers need ready access. Less | | contains necessities to which travelers need ready access. Less |
− |
| |
| lengthy temporary seizures of luggage have been upheld as | | lengthy temporary seizures of luggage have been upheld as |
− |
| |
| reasonable. (33) | | reasonable. (33) |
| | | |
− | | + | Other types of effects may be detained for greater periods |
− | | |
− | Other types of effects may be detained for greater periods
| |
− | | |
| of time without the seizure becoming unreasonable. For example, | | of time without the seizure becoming unreasonable. For example, |
− |
| |
| in United States v. Van Leeuwen, (34) the Supreme Court upheld as | | in United States v. Van Leeuwen, (34) the Supreme Court upheld as |
− |
| |
| reasonable a detention of a mailed package that lasted several | | reasonable a detention of a mailed package that lasted several |
− |
| |
| hours. In United States v. LaFrance, (35) a 4-hour detention of a | | hours. In United States v. LaFrance, (35) a 4-hour detention of a |
− |
| |
| package shipped via Federal Express was approved. These | | package shipped via Federal Express was approved. These |
− |
| |
| decisions are founded on the premise that the sender or | | decisions are founded on the premise that the sender or |
− |
| |
| addressee of a package shipped or mailed has a substantially | | addressee of a package shipped or mailed has a substantially |
− |
| |
| reduced expectation of ready access to that item. (36) | | reduced expectation of ready access to that item. (36) |
− |
| |
| | | |
| | | |
| Probable Cause Seizures | | Probable Cause Seizures |
| | | |
− | | + | The goal of a temporary detention of an effect is the |
− | | |
− | The goal of a temporary detention of an effect is the
| |
− | | |
| development of facts amounting to probable cause to search that | | development of facts amounting to probable cause to search that |
− |
| |
| item. This is accomplished through investigation performed | | item. This is accomplished through investigation performed |
− |
| |
| during the period of temporary detention, and in drug cases, | | during the period of temporary detention, and in drug cases, |
− |
| |
| frequently includes the use of drug detection dogs. Once | | frequently includes the use of drug detection dogs. Once |
− |
| |
| probable cause to search has been established, a more absolute | | probable cause to search has been established, a more absolute |
− |
| |
| seizure becomes reasonable. (37) Officers may take control of | | seizure becomes reasonable. (37) Officers may take control of |
− |
| |
| the effect to prevent the destruction or removal of evidence for | | the effect to prevent the destruction or removal of evidence for |
− |
| |
| a reasonable period while application is made for a search | | a reasonable period while application is made for a search |
− |
| |
| warrant. (38) This allows them to protect the evidence until | | warrant. (38) This allows them to protect the evidence until |
− |
| |
| judicial authorization may be obtained to open the item and | | judicial authorization may be obtained to open the item and |
− |
| |
| examine its contents. | | examine its contents. |
− |
| |
| | | |
| | | |
| SUMMARY | | SUMMARY |
| | | |
− | | + | Returning to the hypothetical situations presented at the |
− | | |
− | Returning to the hypothetical situations presented at the
| |
− | | |
| beginning of this article, in each case, the officers were | | beginning of this article, in each case, the officers were |
− |
| |
| confronted with circumstances they believed required an | | confronted with circumstances they believed required an |
− |
| |
| immediate search. The officers who reasonably suspected that a | | immediate search. The officers who reasonably suspected that a |
− |
| |
| bomb was present in a package bound for an embassy needed to | | bomb was present in a package bound for an embassy needed to |
− |
| |
| verify or dispel the suspicion as quickly as possible to prevent | | verify or dispel the suspicion as quickly as possible to prevent |
− |
| |
| unnecessary danger to life. The warrantless actions they | | unnecessary danger to life. The warrantless actions they |
− |
| |
| performed--the X-ray examinations followed by the opening of the | | performed--the X-ray examinations followed by the opening of the |
− |
| |
| package that appeared to contain explosives--were appropriate | | package that appeared to contain explosives--were appropriate |
− |
| |
| based upon reasonable suspicion and were reasonably limited to | | based upon reasonable suspicion and were reasonably limited to |
− |
| |
| accomplish their purpose, that is, eliminating the threat posed | | accomplish their purpose, that is, eliminating the threat posed |
− |
| |
| by the explosives. | | by the explosives. |
| | | |
− | | + | The officers investigating the suspected drug activity were |
− | | |
− | The officers investigating the suspected drug activity were
| |
− | | |
| also justified in performing certain prompt warrantless actions. | | also justified in performing certain prompt warrantless actions. |
− |
| |
| Their initial seizure was lawful, based upon their reasonable | | Their initial seizure was lawful, based upon their reasonable |
− |
| |
| suspicion that the package contained illegal drugs. The canine | | suspicion that the package contained illegal drugs. The canine |
− |
| |
| sniff was also lawful, since it was promptly accomplished. | | sniff was also lawful, since it was promptly accomplished. |
− |
| |
| However, once probable cause to search was established, the | | However, once probable cause to search was established, the |
− |
| |
| emergency threat of removal or destruction of evidence could | | emergency threat of removal or destruction of evidence could |
− |
| |
| have been eliminated merely by taking control of the package | | have been eliminated merely by taking control of the package |
− |
| |
| pending issuance of a search warrant. Consequently, the | | pending issuance of a search warrant. Consequently, the |
− |
| |
| examination of the contents of the package without a warrant was | | examination of the contents of the package without a warrant was |
− |
| |
| not a valid emergency search. (39) | | not a valid emergency search. (39) |
− |
| |
| | | |
| | | |
| CONCLUSION | | CONCLUSION |
| | | |
− | | + | This article has set out requirements for emergency |
− | | |
− | This article has set out requirements for emergency
| |
− | | |
| searches and seizures of effects based upon: (1) Threats to | | searches and seizures of effects based upon: (1) Threats to |
− |
| |
| life; and (2) threats of destruction of evidence. Because the | | life; and (2) threats of destruction of evidence. Because the |
− |
| |
| scope of warrantless action allowed under the fourth amendment | | scope of warrantless action allowed under the fourth amendment |
− |
| |
| differs depending upon the category of emergency threat | | differs depending upon the category of emergency threat |
− |
| |
| involved, it is essential that officers considering the | | involved, it is essential that officers considering the |
− |
| |
| lawfulness of a proposed emergency search evaluate the type of | | lawfulness of a proposed emergency search evaluate the type of |
− |
| |
| threat presented. Once that determination is made, the | | threat presented. Once that determination is made, the |
− |
| |
| appropriate legal standard may be applied to the facts known. | | appropriate legal standard may be applied to the facts known. |
− |
| |
| Where warrantless searches and seizures are necessary, clear | | Where warrantless searches and seizures are necessary, clear |
− |
| |
| awareness of the type and nature of the threat involved will | | awareness of the type and nature of the threat involved will |
− |
| |
| also facilitate limitation of the scope of the warrantless | | also facilitate limitation of the scope of the warrantless |
− |
| |
| action to only that which is necessary to eliminate the threat. | | action to only that which is necessary to eliminate the threat. |
− |
| |
− |
| |
| | | |
| | | |
Line 686: |
Line 353: |
| FOOTNOTES | | FOOTNOTES |
| | | |
− | | + | (1) For an excellent discussion of the legal issues |
− | | |
− | (1) For an excellent discussion of the legal issues
| |
− | | |
| associated with the use of drug detection dogs, see Kingston, | | associated with the use of drug detection dogs, see Kingston, |
− |
| |
| "Hounding Drug Traffickers: The Use of Drug Detection Dogs," | | "Hounding Drug Traffickers: The Use of Drug Detection Dogs," |
− |
| |
| FBI Law Enforcement Bulletin, August 1989, pp. 26-32. | | FBI Law Enforcement Bulletin, August 1989, pp. 26-32. |
| | | |
− | | + | (2) McDonald v. United States, 335 U.S. 451 (1948); Katz v. |
− | | |
− | (2) McDonald v. United States, 335 U.S. 451 (1948); Katz v.
| |
− | | |
| United States, 389 U.S. 347 (1967). | | United States, 389 U.S. 347 (1967). |
| | | |
− | | + | (3) The fourth amendment to the U.S. Constitution provides: |
− | | |
− | (3) The fourth amendment to the U.S. Constitution provides:
| |
− | | |
| "The right of the people to be secure in their persons, houses, | | "The right of the people to be secure in their persons, houses, |
− |
| |
| papers and effects against unreasonable searches and seizures | | papers and effects against unreasonable searches and seizures |
− |
| |
| shall not be violated...." Effects include such personal | | shall not be violated...." Effects include such personal |
− |
| |
| property as packages, suitcases, handbags, etc., as well as | | property as packages, suitcases, handbags, etc., as well as |
− |
| |
| vehicles. | | vehicles. |
| | | |
− | | + | (4) For a discussion of emergency searches of premises, see |
− | | |
− | (4) For a discussion of emergency searches of premises, see
| |
− | | |
| Sauls, "Emergency Searches of Premises," FBI Law Enforcement | | Sauls, "Emergency Searches of Premises," FBI Law Enforcement |
− |
| |
| Bulletin, Part I, March 1987, pp. 23-30, Conclusion, April 1987, | | Bulletin, Part I, March 1987, pp. 23-30, Conclusion, April 1987, |
− |
| |
| pp. 24-30. For a discussion of emergency searches of persons, | | pp. 24-30. For a discussion of emergency searches of persons, |
− |
| |
| see Sauls, "Emergency Searches of Persons," FBI Law Enforcement | | see Sauls, "Emergency Searches of Persons," FBI Law Enforcement |
− |
| |
| Bulletin, January 1988, pp. 24-30. | | Bulletin, January 1988, pp. 24-30. |
| | | |
| + | (5) See, e.g., Arkansas v. Sanders, 442 U.S. 753 (1979). |
| | | |
| + | (6) See Katz v. United States, supra note 2. |
| | | |
− | (5) See, e.g., Arkansas v. Sanders, 442 U.S. 753 (1979).
| + | (7) Id. at 357. |
− | | |
− | | |
− | | |
− | (6) See Katz v. United States, supra note 2.
| |
− | | |
− | | |
− | | |
− | (7) Id. at 357.
| |
| | | |
| + | (8) Coolidge v. New Hampshire, 403 U.S. 443, 445 (1971). |
| | | |
| + | (9) Supra note 5, at 759. |
| | | |
− | (8) Coolidge v. New Hampshire, 403 U.S. 443, 445 (1971).
| + | (10) Supra note 2. |
| | | |
| + | (11) Warden v. Hayden 387 U.S. 294, 298-99 (1967). |
| | | |
− | | + | (12) Maryland v. Buie, 110 S.Ct. 1093 (1990); Michigan v. |
− | (9) Supra note 5, at 759.
| |
− | | |
− | | |
− | | |
− | (10) Supra note 2.
| |
− | | |
− | | |
− | | |
− | (11) Warden v. Hayden 387 U.S. 294, 298-99 (1967).
| |
− | | |
− | | |
− | | |
− | (12) Maryland v. Buie, 110 S.Ct. 1093 (1990); Michigan v.
| |
− | | |
| Long, 463 U.S. 1032 (1983); Terry v. Ohio, 392 U.S. 1 (1968). | | Long, 463 U.S. 1032 (1983); Terry v. Ohio, 392 U.S. 1 (1968). |
− |
| |
| The U.S. Supreme Court has yet to decide whether reasonable | | The U.S. Supreme Court has yet to decide whether reasonable |
− |
| |
| suspicion is the standard by which the reasonableness of all | | suspicion is the standard by which the reasonableness of all |
− |
| |
| danger to life emergency searches should be measured. The Court | | danger to life emergency searches should be measured. The Court |
− |
| |
| has stated, however, that probable cause is not always the | | has stated, however, that probable cause is not always the |
− |
| |
| standard by which the legality of a search should be measured, | | standard by which the legality of a search should be measured, |
− |
| |
| even where the search constitutes a substantial intrusion into a | | even where the search constitutes a substantial intrusion into a |
− |
| |
| person's privacy. See New Jersey v. T. L.O., 469 U.S. 325, | | person's privacy. See New Jersey v. T. L.O., 469 U.S. 325, |
− |
| |
| 340-41 (1984). | | 340-41 (1984). |
| | | |
| + | (13) 463 U.S. 1032 (1983). |
| | | |
− | | + | (14) For a discussion of the legal issues associated with |
− | (13) 463 U.S. 1032 (1983).
| |
− | | |
− | | |
− | | |
− | (14) For a discussion of the legal issues associated with
| |
− | | |
| vehicle stops, see Sauls, "Traffic Stops: Police Powers Under | | vehicle stops, see Sauls, "Traffic Stops: Police Powers Under |
− |
| |
| the Fourth Amendment," FBI Law Enforcement Bulletin, Part I, | | the Fourth Amendment," FBI Law Enforcement Bulletin, Part I, |
− |
| |
| September 1989, pp. 26-31; Conclusion, October 1989, pp. 27-32. | | September 1989, pp. 26-31; Conclusion, October 1989, pp. 27-32. |
| | | |
− | | + | (15) For an excellent discussion of investigative detention |
− | | |
− | (15) For an excellent discussion of investigative detention
| |
− | | |
| and frisk searches, see Hall, "Investigative Detention: An | | and frisk searches, see Hall, "Investigative Detention: An |
− |
| |
| Intermediate Response," FBI Law Enforcement Bulletin, Part I, | | Intermediate Response," FBI Law Enforcement Bulletin, Part I, |
− |
| |
| November 1985, pp. 25-31; Part II, December 1985, pp. 18-23; | | November 1985, pp. 25-31; Part II, December 1985, pp. 18-23; |
− |
| |
| Conclusion, January 1986, pp. 23-29. | | Conclusion, January 1986, pp. 23-29. |
| | | |
| + | (16) Supra note 13, at 1051. |
| | | |
| + | (17) Id. |
| | | |
− | (16) Supra note 13, at 1051.
| + | (18) Id. The scope of such a search includes the interior of |
− | | |
− | | |
− | | |
− | (17) Id.
| |
− | | |
− | | |
− | | |
− | (18) Id. The scope of such a search includes the interior of
| |
− | | |
| unlocked containers that might conceal deadly weapons. See | | unlocked containers that might conceal deadly weapons. See |
− |
| |
| United States v. Williams, 626 F.2d 697 (9th Cir. 1980), cert. | | United States v. Williams, 626 F.2d 697 (9th Cir. 1980), cert. |
− |
| |
| denied, 449 U.S. 1020 (1980) (purse in suspected bank robber's | | denied, 449 U.S. 1020 (1980) (purse in suspected bank robber's |
− |
| |
| car that was suspected to contain a bomb); United States v. | | car that was suspected to contain a bomb); United States v. |
− |
| |
| Glenna, 878 F.2d 967 (7th Cir. 1989) (suitcase in van suspected | | Glenna, 878 F.2d 967 (7th Cir. 1989) (suitcase in van suspected |
− |
| |
| to contain a bomb); United States v. Longmire, 761 F.2d 411 (7th | | to contain a bomb); United States v. Longmire, 761 F.2d 411 (7th |
− |
| |
| Cir. 1985) (purse in car suspected to contain deadly weapons); | | Cir. 1985) (purse in car suspected to contain deadly weapons); |
− |
| |
| United States v. Williams, 822 F.2d 1174 (D.C. Cir. 1987) | | United States v. Williams, 822 F.2d 1174 (D.C. Cir. 1987) |
− |
| |
| (tactile examination of exterior of paper bag in car suspected to | | (tactile examination of exterior of paper bag in car suspected to |
− |
| |
| contain deadly weapons). | | contain deadly weapons). |
| | | |
| + | (19) 413 U.S. 433 (1972). |
| | | |
| + | (20) Id. at 447. |
| | | |
− | (19) 413 U.S. 433 (1972).
| + | (21) United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988). |
− | | |
− | | |
− | | |
− | (20) Id. at 447.
| |
− | | |
− | | |
− | | |
− | (21) United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988).
| |
− | | |
| See also, United States v. Pulido-Baguerizo, 800 F.2d 899 (9th | | See also, United States v. Pulido-Baguerizo, 800 F.2d 899 (9th |
− |
| |
| Cir. 1986). | | Cir. 1986). |
| | | |
− | | + | (22) United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981). |
− | | |
− | (22) United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981).
| |
− | | |
| McClinnhan is noteworthy for its discussion of the dilemma faced | | McClinnhan is noteworthy for its discussion of the dilemma faced |
− |
| |
| by an officer who has reasonable suspicion that a dangerous | | by an officer who has reasonable suspicion that a dangerous |
− |
| |
| instrumentality is contained in an effect, but who has no way of | | instrumentality is contained in an effect, but who has no way of |
− |
| |
| verifying or dispelling his suspicions other than an examination | | verifying or dispelling his suspicions other than an examination |
− |
| |
| of the interior of the effect. Seizing the effect will not | | of the interior of the effect. Seizing the effect will not |
− |
| |
| neutralize the dangerous instrumentality, and no warrant can be | | neutralize the dangerous instrumentality, and no warrant can be |
− |
| |
| obtained since the suspicions do not rise to the level of | | obtained since the suspicions do not rise to the level of |
− |
| |
| probable cause to search. Consequently, a prompt examination of | | probable cause to search. Consequently, a prompt examination of |
− |
| |
| the effect's interior is the least intrusive measure to | | the effect's interior is the least intrusive measure to |
− |
| |
| neutralize the threat. | | neutralize the threat. |
| | | |
− | | + | (23) United States v. Miller, 468 F.2d 1041 (4th Cir. 1972), |
− | | |
− | (23) United States v. Miller, 468 F.2d 1041 (4th Cir. 1972),
| |
− | | |
| cert. denied, 410 U.S. 935 (1972). | | cert. denied, 410 U.S. 935 (1972). |
| | | |
| + | (24) Supra note 21. |
| | | |
| + | (25) Supra note 23. |
| | | |
− | (24) Supra note 21.
| + | (26) Id. at 1045. |
| | | |
| + | (27) 485 F.2d 201 (6th Cir. 1973). |
| | | |
| + | (28) Id. at 202. |
| | | |
− | (25) Supra note 23.
| + | (29) See Schmerber v. California, 384 U.S. 757 (1966); Vale v. |
− | | |
− | | |
− | | |
− | (26) Id. at 1045.
| |
− | | |
− | | |
− | | |
− | (27) 485 F.2d 201 (6th Cir. 1973).
| |
− | | |
− | | |
− | | |
− | (28) Id. at 202.
| |
− | | |
− | | |
− | | |
− | (29) See Schmerber v. California, 384 U.S. 757 (1966); Vale v.
| |
− | | |
| Louisiana, 399 U.S. 30 (1970). | | Louisiana, 399 U.S. 30 (1970). |
| | | |
| + | (30) 462 U.S. 696 (1983). |
| | | |
− | | + | (31) For examples of facts held to constitute reasonable |
− | (30) 462 U.S. 696 (1983).
| |
− | | |
− | | |
− | | |
− | (31) For examples of facts held to constitute reasonable
| |
− | | |
| suspicion that contraband is present, see United States v. | | suspicion that contraband is present, see United States v. |
− |
| |
| Sokolow, 109 S.Ct. 1581 (1989); United States v. Sharpe, 105 | | Sokolow, 109 S.Ct. 1581 (1989); United States v. Sharpe, 105 |
− |
| |
| S.Ct. 1568 (1985). | | S.Ct. 1568 (1985). |
| | | |
| + | (32) Supra note 30, at 710. |
| | | |
− | | + | (33) See, e.g., United States v. Pantazis, 816 F.2d 361 (8th |
− | (32) Supra note 30, at 710.
| |
− | | |
− | | |
− | | |
− | (33) See, e.g., United States v. Pantazis, 816 F.2d 361 (8th
| |
− | | |
| Cir. 1987); United States v. Alpert, 816 F.2d 958 (4th Cir. | | Cir. 1987); United States v. Alpert, 816 F.2d 958 (4th Cir. |
− |
| |
| 1987). | | 1987). |
| | | |
| + | (34) 397 U.S. 249 (1970). |
| | | |
| + | (35) 879 F.2d 1 (1st Cir. 1989). |
| | | |
− | (34) 397 U.S. 249 (1970).
| + | (36) See also, United States v. Hillison, 733 F.2d 692 (9th |
− | | |
− | | |
− | | |
− | (35) 879 F.2d 1 (1st Cir. 1989).
| |
− | | |
− | | |
− | | |
− | (36) See also, United States v. Hillison, 733 F.2d 692 (9th
| |
− | | |
| Cir. 1984), approving a 9-hour warrantless seizure of a mailed | | Cir. 1984), approving a 9-hour warrantless seizure of a mailed |
− |
| |
| package. | | package. |
| | | |
| + | (37) United States v. Place, supra note 30. |
| | | |
− | | + | (38) Although considerable latitude is generally allowed, at |
− | (37) United States v. Place, supra note 30.
| |
− | | |
− | | |
− | | |
− | (38) Although considerable latitude is generally allowed, at
| |
− | | |
| least some diligence in promptly applying for a search warrant is | | least some diligence in promptly applying for a search warrant is |
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| required. See United States v. Dass, 849 F.2d. 414 (9th Cir. | | required. See United States v. Dass, 849 F.2d. 414 (9th Cir. |
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| 1988). | | 1988). |
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− | | + | (39) Since the officers have acted without a warrant, as a |
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− | (39) Since the officers have acted without a warrant, as a
| |
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| practical matter, the officers and their prosecutor should | | practical matter, the officers and their prosecutor should |
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| |
| consider the potential application of other exceptions to the | | consider the potential application of other exceptions to the |
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| warrant requirement, such as Search Incident to Arrest. These | | warrant requirement, such as Search Incident to Arrest. These |
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| considerations, however, are beyond the scope of this article. | | considerations, however, are beyond the scope of this article. |
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| + | |
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| _______________ | | _______________ |
| | | |
| | | |
− | | + | Law enforcement officers of other than Federal jurisdiction |
− | Law enforcement officers of other than Federal jurisdiction
| |
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| who are interested in this article should consult their legal | | who are interested in this article should consult their legal |
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| adviser. Some police procedures ruled permissible under Federal | | adviser. Some police procedures ruled permissible under Federal |
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| constitutional law are of questionable legality under State law | | constitutional law are of questionable legality under State law |
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| or are not permitted at all. | | or are not permitted at all. |
| | | |
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| + | |
| | | |
| + | LEGAL BRIEF |
| | | |
| + | MINNICK V. MISSISSIPPI |
| | | |
− |
| + | U.S. SUPREME COURT DECISION |
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− | LEGAL BRIEF
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− | | |
− | MINNICK V. MISSISSIPPI
| |
− | | |
− | U.S. SUPREME COURT DECISION
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− | On December 3, 1990, in Minnick v. Mississippi, the Supreme
| + | On December 3, 1990, in Minnick v. Mississippi, the Supreme |
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| Court established a new rule concerning the interview of | | Court established a new rule concerning the interview of |
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| |
| in-custody suspects who have asserted the right to consult with | | in-custody suspects who have asserted the right to consult with |
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| |
| counsel. In a 6-2 ruling (Justice Souter not participating), the | | counsel. In a 6-2 ruling (Justice Souter not participating), the |
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| Court held that "when counsel is requested, interrogation must | | Court held that "when counsel is requested, interrogation must |
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| |
| cease, and officials may not reinitiate interrogation without | | cease, and officials may not reinitiate interrogation without |
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| |
| counsel present, whether or not the accused has consulted with | | counsel present, whether or not the accused has consulted with |
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| |
| his attorney." | | his attorney." |
| | | |
− | | + | Minnick and a companion escaped from a county jail in |
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− | Minnick and a companion escaped from a county jail in
| |
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| Mississippi and committed a house burglary looking for weapons. | | Mississippi and committed a house burglary looking for weapons. |
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| |
| They were surprised by the arrival of the occupants of the house | | They were surprised by the arrival of the occupants of the house |
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| and murdered two of them. Minnick fled and was ultimately | | and murdered two of them. Minnick fled and was ultimately |
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| apprehended in California 4 months after the murders. FBI Agents | | apprehended in California 4 months after the murders. FBI Agents |
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| |
| sought to interview Minnick in jail in California. Minnick was | | sought to interview Minnick in jail in California. Minnick was |
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| |
| advised of his Miranda rights, and though he refused to sign a | | advised of his Miranda rights, and though he refused to sign a |
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| |
| written waiver, agreed to answer some questions. During the | | written waiver, agreed to answer some questions. During the |
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| interview, Minnick told the Agents he would make a full | | interview, Minnick told the Agents he would make a full |
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| statement in a few days when his lawyer was present. The Agents | | statement in a few days when his lawyer was present. The Agents |
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| |
| then terminated the interview. Three days later, an investigator | | then terminated the interview. Three days later, an investigator |
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| |
| for the State of Mississippi sought to interview Minnick in | | for the State of Mississippi sought to interview Minnick in |
− |
| |
| California. Again, Minnick declined to sign a written waiver of | | California. Again, Minnick declined to sign a written waiver of |
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| |
| his Miranda rights, but agreed to talk with the investigator. | | his Miranda rights, but agreed to talk with the investigator. |
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| |
| Statements given to the investigator led to Minnick's prosecution | | Statements given to the investigator led to Minnick's prosecution |
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| |
| and conviction for murder. | | and conviction for murder. |
| | | |
− | | + | Minnick challenged the admissibility of his statements, |
− | | |
− | Minnick challenged the admissibility of his statements,
| |
− | | |
| claiming that his invocation of his right to counsel to the FBI | | claiming that his invocation of his right to counsel to the FBI |
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| |
| Agents precluded his subsequent waiver of rights given to the | | Agents precluded his subsequent waiver of rights given to the |
− |
| |
| Mississippi investigator, even though he had consulted with his | | Mississippi investigator, even though he had consulted with his |
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| |
| court-appointed counsel on two or three occasions in the | | court-appointed counsel on two or three occasions in the |
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| |
| interim. The Mississippi Supreme Court in Minnick ruled that | | interim. The Mississippi Supreme Court in Minnick ruled that |
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| |
| once a suspect has consulted with his attorney, the suspect may | | once a suspect has consulted with his attorney, the suspect may |
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| |
| thereafter be contacted, waive his rights, and be interviewed by | | thereafter be contacted, waive his rights, and be interviewed by |
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| |
| the police. | | the police. |
| | | |
− | | + | In reversing the Mississippi Supreme Court, the U.S. |
− | | |
− | In reversing the Mississippi Supreme Court, the U.S.
| |
− | | |
| Supreme Court established a bright-line rule barring | | Supreme Court established a bright-line rule barring |
− |
| |
| police-initiated interviews following an invocation of the right | | police-initiated interviews following an invocation of the right |
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| |
| to counsel by an in-custody suspect. The Court ruled the actual | | to counsel by an in-custody suspect. The Court ruled the actual |
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| |
| presence of counsel is necessary before police-initiated | | presence of counsel is necessary before police-initiated |
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| |
| interrogation may resume and that a bright-line rule prohibiting | | interrogation may resume and that a bright-line rule prohibiting |
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| |
| reinterrogation of a suspect who has requested counsel without | | reinterrogation of a suspect who has requested counsel without |
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| |
| the presence of his attorney would best protect the fifth | | the presence of his attorney would best protect the fifth |
− |
| |
| amendment privilege against self-incrimination. In addition, a | | amendment privilege against self-incrimination. In addition, a |
− |
| |
| bright-line rule approach saves judicial resources otherwise | | bright-line rule approach saves judicial resources otherwise |
− |
| |
| expended in making determinations of voluntariness and provides | | expended in making determinations of voluntariness and provides |
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| |
| specificity for police, prosecutors, and suspects as to | | specificity for police, prosecutors, and suspects as to |
− |
| |
| acceptable police practice. | | acceptable police practice. |
| | | |
− | | + | The Court's rule announced in Minnick does not disturb the |
− | | |
− | The Court's rule announced in Minnick does not disturb the
| |
− | | |
| previous holding that if a suspect initiates the dialogue with | | previous holding that if a suspect initiates the dialogue with |
− |
| |
| the police, a valid waiver and confession may follow. Minnick | | the police, a valid waiver and confession may follow. Minnick |
− |
| |
| specifically recognizes that courts may still find a "a waiver | | specifically recognizes that courts may still find a "a waiver |
− |
| |
| of Fifth Amendment protections after counsel has been requested, | | of Fifth Amendment protections after counsel has been requested, |
− |
| |
| provided the accused has initiated the conversation or | | provided the accused has initiated the conversation or |
− |
| |
| discussions with the authorities." | | discussions with the authorities." |
| | | |
− | | + | Minnick is a significant change in the law of confessions |
− | | |
− | Minnick is a significant change in the law of confessions
| |
− | | |
| and interrogations. Police officers should be aware of this | | and interrogations. Police officers should be aware of this |
− |
| |
| expansion of the right to counsel in custodial interrogations | | expansion of the right to counsel in custodial interrogations |
− |
| |
| and the need to ensure the presence of an attorney if | | and the need to ensure the presence of an attorney if |
− |
| |
| police-initiated reinterrogation is desired after an initial | | police-initiated reinterrogation is desired after an initial |
− |
| |
| invocation of the right. | | invocation of the right. |
− |
| |
− |
| |
| | | |
| _______________ | | _______________ |
| | | |
| | | |
− | | + | This legal brief was written by Special Agent Jeffrey |
− | This legal brief was written by Special Agent Jeffrey
| |
− | | |
| Higginbotham, a legal instructor at the FBI Academy in Quantico, | | Higginbotham, a legal instructor at the FBI Academy in Quantico, |
− |
| |
| Virginia. | | Virginia. |
− | </pre>
| |
| | | |
| [[Category:Essays]] | | [[Category:Essays]] |